This article will deal with the nature of the “enduring” part of the document and detail some reasons why it may be cancelled or revoked. If you have made an enduring power of attorney you have given the person you appointed under the document (“your attorney”) power to make decisions your health and/or financial affairs and the word “enduring” simply means that those powers will continue even if you (the person who has made the document) lose the capacity to make decisions in the future.
You may revoke or cancel your EPOA at any time, so long as you have the capacity to make a new EPOA. There are many reasons why you might choose to revoke your EPOA. For example, you may no longer have a close relationship with and would prefer that someone else act on your behalf. Or your attorney might be moving interstate or overseas and is no longer readily available to assist you now or in the future.
What happens if my attorney is no longer willing or able to act?
Your attorney may at any time resign as your attorney if they are no longer willing or able to act on your behalf. If your attorney resigns, your EPOA is revoked to the extent that it gives power to that attorney. In other words, if you have appointed more than one attorney to act for you, the power given to the other attorney (who had not resigned) will not be affected.
What happens if my attorney loses capacity or becomes bankrupt?
If you attorney is no longer able to act on your behalf because they have lost capacity, then your EPOA is revoked to the extent that it gives that attorney the power to act on your behalf. If one or your attorneys have lost capacity it will not revoke the power of your remaining named attorneys. However, if you have only appointed one attorney and that attorney loses capacity, then you will need to make a new EPOA.
If you have appointed an attorney to make financial decisions on your behalf and that attorney becomes bankrupt, then the financial power given to that attorney is revoked. If one of your attorneys becomes bankrupt, then please contact us so that your EPOA can be reviewed and if necessary updated.
What happens if my attorney dies?
If your attorney dies, then your EPOA is revoked in its entirety unless you have appointed a substitute attorney. If this situation applies and you have not appointed substitute or reserve attorney, then you will need to contact us to have a new EPOA made.
If have appointed two or more attorneys, and one of the attorney’s power is revoked for any of the above reasons, then the remaining or surviving attorney will still have the power to act on your behalf even though the other attorney has died or is unable to act for any one of the above reasons.
Marriage and Divorce
If you marry, the EPOA is revoked unless your new spouse is already your attorney. However if you have appointed any other attorney as well as your spouse, then that other attorney’s power will be revoked on your marriage. If you divorce then the EPOA is revoked to the extent that it was given to your former spouse. The review of the EPOA is often overlooked on marriage and separation and we urge you to see us if this situation applies to you.
If you would like to discuss your EPOA, then please contact either Juliet Smith or Peter Smith in our office. We can review your current EPOA or make a new document to ensure that it meets your present and future needs.